Citation Nr: 1440356
Decision Date: 09/10/14 Archive Date: 09/18/14
DOCKET NO. 11-10 549 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire
THE ISSUES
1. Entitlement to a rating higher than 20 percent for degenerative joint disease of the right ankle.
2. Entitlement to a rating higher than 10 percent for degenerative joint disease of the right knee prior to August 12, 2009, and since October 1, 2009.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Appellant-Veteran
ATTORNEY FOR THE BOARD
Shamil Patel, Counsel
INTRODUCTION
The Veteran had active military service from December 1991 to September 1993.
He appealed to the Board of Veterans' Appeals (Board/BVA) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied higher ratings for his right ankle and right knee disabilities. The RO in Manchester, New Hampshire, since has assumed jurisdiction over these claims.
In September 2009 the RO granted a temporary 100 percent convalescent rating for the Veteran's right knee disability under the provisions of 38 C.F.R. § 4.30 effective from August 12 to September 30, 2009. As of October 1, 2009, the previously-assigned 10 percent rating resumed.
In June 2013, in support of his claims, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board, in other words at a Travel Board hearing. A transcript of the proceeding is of record. In the course of his testimony during the hearing, the Veteran reiterated what he had earlier indicated in his Substantive Appeal to the Board (on VA Form 9), which was that the rating for his right ankle disability should "stay the same". So he is no longer requesting a higher rating for his right ankle disability, hence, the Board is summarily dismissing this claim as withdrawn. 38 C.F.R. § 20.204 (2013). He continued to allege entitlement to a higher rating for his right knee disability, however, so this other claim is still at issue.
Also, notably, if the record reasonably raises the question of whether he is unemployable due to the disability for which an increased rating is sought, then part and parcel to the claim for an increased rating is whether a total disability rating based on individual unemployability (TDIU) as a result of the disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Although there are some indications in this case that the Veteran's service-connected disabilities rendered him unemployable in years past, he specifically indicated during his June 2013 hearing that, although he was no longer working as a police officer, and although he had to resign from that job because of his right knee disability, he was not claiming entitlement to a TDIU, especially since he is now going to school to obtain training in other fields of endeavor that hopefully will allow him to return to the work force in some other capacity. See Hearing Transcript at page 4.
As for the claim that remains, this claim of entitlement to a rating higher than 10 percent for his right knee disability (degenerative joint disease, i.e., arthritis) requires further development before being decided on appeal. So the Board is remanding this claim to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT
Prior to the promulgation of a decision in this appeal, the Veteran submitted a June 2013 written statement (on VA Form 21-4138) and testified on the record during his hearing that he is withdrawing his claim of entitlement to a higher rating for the degenerative joint disease affecting his right ankle. So the only claim that remains concerns whether he, instead, is entitled to a higher rating for the degenerative joint disease affecting his right knee.
CONCLUSION OF LAW
The criteria are met for withdrawal of the substantive appeal concerning the claim of entitlement to a higher rating for the right ankle degenerative joint disease. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
Under 38 U.S.C.A. § 7105 (West 2002), the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal (VA Form 9 or equivalent statement) may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2013).
Here, in a June 2013 written statement (on VA Form 21-4138) and during his June 2013 hearing, so prior to the promulgation of a decision in this appeal, the Veteran indicated he is withdrawing his claim of entitlement to a higher rating for his right ankle degenerative joint disease. Consequently, there remain no allegations of errors of fact or law for appellate consideration concerning this claim. Accordingly, the Board does not have jurisdiction to review the claim and it is summarily dismissed.
ORDER
The appeal concerning the claim of entitlement to a higher rating for the right ankle degenerative joint disease is dismissed.
REMAND
The Veteran testified during his hearing in June 2013 that his right knee disability had worsened significantly since his last VA compensation examination in January 2010. It has now been nearly 5 years since that examination. Therefore, a new VA examination is needed reassessing the severity of this service-connected disability. Moreover, as this claim is being remanded for this additional examination, all more recent VA or other treatment records also should be obtained and considered.
Accordingly, this claim is REMANDED for the following additional development and consideration:
1. Obtain the Veteran's VA treatment records for the period from August 2009 to the present and associate them with the claims file for consideration. The file reflects that he received treatment through the Viera Outpatient Clinic and Orlando VA Medical Center in Florida prior to May 16, 2011, and through the Manchester VA Medical Center in New Hampshire thereafter.
2. Upon receipt of all additional records, schedule the Veteran for a VA compensation examination to reassess the severity of his right knee degenerative joint disease. The claims folder should be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and all findings set forth in detail.
The VA examiner must document all symptoms and manifestations associated with the Veteran's right knee disability, including determining the extent of limitation of motion on flexion and extension. In this regard, the examiner should determine whether the right knee exhibits pain or painful motion, weakened movement, premature or excess fatigability, or incoordination; and, if feasible, these determinations should be expressed in terms of the degree of additional functional loss, including in terms of what effect, if any, this has on the range of motion of the right knee, including during times when these symptoms are most prevalent (flare ups) or during prolonged, repetitive use of this knee.
The examiner should additionally assess whether the right knee disability results in recurrent subluxation or lateral instability, and if so, whether the subluxation or instability is mild, moderate, or severe. As well, the examiner should assess whether any dislocated semilunar cartilage is present and results in frequent episodes of locking, pain, and effusion into the knee joint.
3. Review the examination report to ensure it is responsive to the questions posed and provides the information needed to address the applicable rating criteria. If not, obtain all necessary additional information. 38 C.F.R. § 4.2; Stegall v. West, 11 Vet. App. 268, 271 (1998).
4. Then readjudicate this claim for a higher rating for the right knee disability (for the times at issue) in light of this and all other additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC) and give them opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim.
The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs